ISLAM IS THE

RELIGION OF
FEDERATION
NOOR ‘ASHIKIN HAMID
LEARNING
OUTCOMES
1. Explain the historical
background of Islam in Malaya
2. Discuss the position of Islam in
the Federal Constitution
3. Examine the effects of Islam as
the Religion of Federation
Position Before Independence
1.The Reid Commission:
In the draft of constitution – no provision on the religion of the state.
Reasons:
i. The commissioners felt it would contradict the ‘secular’ nature of the
state.
ii. Strong objections of the Malay Rulers - 2 reasons:
a. The Rulers were the head of religion in their states – the provision
would encroach their individual position as the head of the religion.
b. Islam was a state matter – the provision would interfere with the
rights of the state on that matter.
Position Before Independence
2.The Alliance, Rulers & Working Party deliberations
The Alliance Party in its memorandum, by a concession between UMNO, MCA &
MIC, urged the commission to insert a provision that Islam as the religion of the
federation.
And the provision:
i. would not impose disability on non-Muslims; and
ii. did not imply that the state was not secular.
 Position Before Independence
As to Rulers’ objection, the article should contain 2 provisos:
1. It would not effect the position of the rulers as the head of religion;
2. The practice of other religions would be protected by the constitution.
Tunku Abd Rahman assured the Working Party that the state would be a
secular state.
The set-up of religious department at federal level only for liaison
purpose.
The provision would also enable the YDPA to become the head of religion
of former Crown Colonies.
Islam in the Federal Constitution
Art 3(1)
Islam is the religion of the Federation; but other religions may be practiced in
peace and harmony in any part of the Federation.
Justice Abdul Hamid in his note proposes that “Islam shall be the religion of the
Federation”.
However the phrase used in the White Paper “is” instead “shall”.
The impact of this is that the provision is said to give recognition to Islam as a
recognized religion in the state either in practice or in state constitution.
Thus, the provision is said to give recognition to Islam as state ideology or made Islam the
“official religion” of the Federation.
Though the word official nowhere be found in the Reid Commission Report, the word is used
synonymous to state religion which means “ a religious body or creed officially endorsed by the
State”.
Salleh Abbas the consequence arising from art 3 (1) is that government (federal or state) has the
liberty, power and privilege to establish or maintain Islamic institution or provide aid in the
maintaining or establishing Islamic institution and to incur necessary expenditure for the
purpose.
Federal and state government through annual Supply Act and Enactment are authorised to
spend money on the administration of Islamic religious law (art 12(2)).
Islam in the Federal Constitution
Che Omar bin Che Soh [1988] 2 MLJ 55
Fact: mandatory death sentences issued to three men sentenced for
either drug or firearms crimes under the Dangerous Drugs Act 1952 or
the Firearms (Increased Penalties) Act 1971, respectively. In their appeal,
the men argued that their death sentences were unconstitutional and
therefore void under Articles 3 and 4 of the Malaysian Constitution.
Issue: Whether the imposition of death penalty on the offences is
contrary to Islamic law and therefore void?
Basis: Art 3 establishes Islam as “the religion of the Federation” and Art 4 provides that the
Constitution is the supreme law of the land that may not be contravened by other laws.
Appellants argued, the Constitution mandates that all laws must be in accord with Islamic law.
A mandatory death sentence for their drug trafficking and firearms offences would be against
the injunctions of Islamic law because the crimes in question were neither offences for
which ḥudūd punishments were justified nor crimes for which the rule of qiṣāṣ is permitted.
HELD: Supreme Court rejected the appellant’s argument, upholding their sentences. Tracing
the historical context of the law in Malaysia, the SC found that the concept of sovereignty of the
rulers introduced by the British severed the divine source of legal validity and turned the system
of governance into a secular institution. Islamic law was limited to the narrow confines of the
law of marriage, divorce and inheritance and was applicable only to Muslims as their personal
law. It is in this sense of dichotomy that the framers of the Constitution understood the meaning
of the word of “Islam” in the context of Article 3.
Judgment by Tun Salleh Abas LP:
Islam is not just a mere collection of dogmas and rituals, but it is a complete way
of life covering all fields of human activities. The term "Islam" or "Islamic
religion" in Article 3 in the context means only such acts as relate to rituals and
ceremonies. If it had been otherwise, there would have been other provisions
which would have the effect that any law contrary to the injunction of Islam will
be void. The law in this country is still what it is today, secular law, where
morality not accepted by the law is not enjoying the status of law.  Until the law
and the system is changed, we have no choice but to proceed as we are doing
today.
 Population 31,809,660 (July 2018 est.)

Muslim (official) 61.3%, Buddhist

19.8%, Christian 9.2%,
Hindu 6.3%, Confucianism, Taoism,
Religions other traditional Chinese religions
1.3%, other 0.4%,
none 0.8%, unspecified 1% (2010
est.)

Source: CIA World Factbook

 Islam in the Federal Constitution
The religion of Islam  has been given the special status of being the main and dominant religion of the Federation.
Article 3(1) has a far wider and meaningful purpose than a mere fixation of the official religion.
Implications:
1.The limitation imposed on the propagation among persons professing the religion of Islam  in art 11(4).
There are some State and Federal laws restricting the right to propagate any non-Muslim religious doctrine or
belief among Muslims, such as Terengganu's The Control and Restriction of the Propagation of Non-Islamic
Religious Enactment 1980.
For the Federal Territories, section 5 of the Syariah Criminal Offence Act 1997 states: [A]ny person who propagates
religious doctrine or belief other than the religious doctrine or beliefs of the religion of Islam among persons
professing the Islamic faith shall be guilty of an offence and shall on conviction be liable to fine not exceeding three
thousand ringgit or to imprisonment for a term not exceeding two years or to both.
As a matter of constitutional law, these legislations are perfectly constitutional by virtue of Article 11(4)
The second issue arising from the Article 11(4) restriction is that state laws may
prohibit the propagation of other doctrines within Islam itself.
On this limitation, Salleh Abbas argues that: This limitation is logical as it is
necessary consequence that follows naturally from the fact that Islam is the
religion of the Federation. Muslims in this country belong to the Sunni Sect
which recognizes only the teachings of four specified schools of thought and
regards others school of thought as being contrary to true Islamic religion. It is
with a view to confining the practice of Islamic religion in this country within the
Sunni Sect that State Legislative Assemblies and Parliament as respects the
Federal Territory are empowered to pass laws to protect Muslims.
ABDUL HAKIM OTHMAN & ORS v. MENTERI
DALAM NEGERI, MALAYSIA [2018] 8 CLJ 343
Fact: The president and members of Organisasi Hizbut Tahrir Malaysia submitted an online
application to register Hizbut Tahrir as a society under s. 6 of the Societies Act 1966 with the
Registrar of Societies (the ‘ROS’), but the application was rejected.
Subsequently, the State of Selangor had gazetted the fatwa under s. 47 of the Administration of the
Religion of Islam Enactment 2003 that the teachings of Hizbut Tahrir was against the teachings of
Islam. The applicants were then informed that the Minister of Home Affairs had rejected the
applicants’ appeal.
HELD- Based on the fatwa issued by the State of Selangor, it was clearly established that practicing
the ideologies of Hizbut Tahrir was contrary to the true teachings of Islam in accordance with Ahli
Sunnah Wal Jamaah, and amounted to deviant teaching and practices.
In the circumstances, the findings of the Fatwa Committee and the fatwa issued by the State of
Selangor, which formed the basis of the decision of the ROS and the Minister, was legal and
constitutional.
2.Qualifying a Muslim's absolute right to murtad by requiring compliance to the
relevant syariah laws on apostasy is a condition precedent.
DALAM PERKARA NYONYA TAHIR, EXP MAJLIS AGAMA ISLAM NEGERI SEMBILAN
& YANG LAIN [2006] 1 MLRS 2510 the Islamic Religious Authority of the State had
made an ex-parte request to review the status of the deceased who was born
and registered as a Muslim. Upon reviewing the oral and documentary evidence
that had shown that the deceased had led a non-Muslim lifestyle since she was a
child and had openly declared that she did not consider herself a Muslim, the
Shariah Court declared that the deceased was not a Muslim at the time of her
death.
HJ RAIMI BIN ABDULLAH V. SITI HASNAH
VANGARAMA ABDULLAH AND ANOTHER APPEAL
[2014] 3 MLJ 757,
The Federal Court following that of Soon Singh a/l Bikar Singh v.
Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999]
2 CLJ 5; [1999] 1 MLJ 489; held that the issue of whether a person is
a Muslim or not falls within the exclusive jurisdiction of the Syariah
Court because ‘since matters on conversion to Islam come under the
jurisdiction of the Syariah Court by implication conversion out of
Islam should also fall under the jurisdiction of the same courts’ (per
Mohd Dzaiddin FCJ in Soon Singh’s case).
3. The establishment of Islamic institution for the furtherance of
the religion of Islam  with funds to be expended for the
advancement of the Islamic religion.
LINA JOY V MAJLIS AGAMA ISLAM WILAYAH & ANOR [2004] 2 MLJ
119, Faiza Tamby Chik J:
“the provision in Article 3(1) was substantial has a far wider and
meaningful purpose than a mere fixation of the official religion
and ruled that it has had significantly impacting the concept of
religious freedom as well as the use of public funds for the
advancement of Islam. As Islam the main and dominant religion in
the Federation, it is a duty of the state to safeguard, uphold and
promote Islam” (p.296).
Islam in the Federal Constitution
4. Art 74(2) enables the Federal and State government to enact Syariah laws to be
implemented by Syariah courts so long as they are not inconsistent with the constitution.
MAMAT BIN DAUD & ORS V GOVERNMENT OF MALAYSIA [1988] 1 MLJ 11 where the
petitioners were charged under sec 298A of the Penal Code for acting as an unauthorised
Bilal, Khatib and Imam at a Friday prayer in K. Trg.
Issue: Whether the section enacted by Parliament is ultra vires Article 74(1) of FC since the
subject matter of the legislation is reserved for the State Legislatures & thus beyond the
legislative competency of Parliament. 
Held: Sec 298A is a law with respect to which Parliament has no power to make law &
therefore was declared null and void and of no effect.
SULAIMAN BIN TAKRIB V KERAJAAN NEGERI TERENGGANU
(KERAJAAN MALAYSIA, INTERVENER) & OTHER
APPLICATIONS [2009] 6 MLJ 354
P was charged with an offence under Syariah Criminal Offences (Takzir) (Terengganu) Enactment 2001 for:
1. acting in contempt of a religious authority by defying the fatwa regarding the teaching and belief of Ayah Pin; &
2. possession of a vcd content of which is contrary to Hukum Syarak.
Pending trial, P sought a declaration that pursuant to article 4(4) of the FC, the provisions enacted by the SLA were
null and void because it had no power to make such provisions. One of the limits imposed by FC on the SLA in
creating offences under item I of List II of 9th Schedule is that the offence must be offences against the precepts of
Islam.
Precepts of Islam cover 3 domains i.e creed or belief (aqidah), law (shariah) and ethics or morality (akhlaq)
Held:
Since the offences are offences against the precepts of Islam & specifically covered Muslims only, it could not be
envisaged that they were criminal laws as envisaged by the Constitution.
As such, the impugned sections were valid.
5. The government has a duty to protect, defend and promote the religion of Islam -
the Fourth Schedule states that the YDPA among other things solemnly and truly
declares that he shall at all time protect the religion of Islam.
Lina Joy v Majlis Agama Islam Wilayah & Anor [2004] 2 MLJ 119Faiza Tamby Chik J:
“the provision in Article 3(1) was substantial has a far wider and meaningful purpose
than a mere fixation of the official religion and ruled that it has had significantly
impacting the concept of religious freedom as well as the use of public funds for the
advancement of Islam. As Islam the main and dominant religion in the Federation, it
is a duty of the state to safeguard, uphold and promote Islam” (p.296).
MEOR ATIQULRAHMAN ISHAK & YANG LAIN LWN
FATIMAH SIHI & YANG LAIN [2000] 1 CLJ 393
HC held
Art 3 obliges the government to preserve, promote and propagate Islam to the full extent of its capacity.
There were several ways that the government ought to give effect to Article 3 such as by setting moral
codes as well as to make rules to ensure the supremacy of Islam as the superior religion. The practice of
non-Islamic religions should be conducted and observed so that it is exercised in peace and harmony and
does not endanger the superior position of Islam.
Dato’ Mohd Noor Abdullah
Islam is the religion of the Federation, but other religions can be practised in peace and harmony,” means
that Islam is the dominant religion among the other religions that are professed in this country like
Christianity, Buddhism, Hinduism and others. Islam is not of the same status as other religions; it does not
sit shoulder to shoulder or stand at the same height. Islam sits at the top, it walks first…If this were not the
case, Islam would not be the religion of the Federation but just one of the several religions practiced in the
country and every person would be equally free to practice any religion he or she professes, no one better
than the other.169 (p 402)- translated from Malay by Tew (2016) page 61.
Menteri Dalam Negeri & Ors v Titular Roman
Catholic Archbishop of Kuala Lumpur [2013] 6
MLJ 468
COA, held
Article 3 is not a mere declaration but that it imposes positive obligations on the
Federation to protect, defend and promote Islam and to give effect by appropriate
state action, to the injunction of Islam and to facilitate and encourage people to
hold their life according to the Islamic injunction on spiritual and daily life.
Article 3 places the religion of Islam on par with the other basic structures of the
Constitution, the reasoning being that it is the third in the order of precedence of
the Articles (at 489I-490A). 
Article 11 is to be read subject to Article 3, the Article on fundamental liberties,
having been grouped together subsequently under Part II. The insertion of the
words "in peace and harmony" in Article 3 was to protect the sanctity of Islam and
to insulate it against any threat (at 490 ).
Application of
Islamic affairs
in Malaysia
a. YDPA as the Head of
Islam
YDPA is the Head of Islam in Federal Territories of
Kuala Lumpur, Labuan and Putrajaya
Art 3 (5) in Act A206 and Amendment Act
A1095
Other states – Rulers as the Head of Islam
Article 3(3) – State of Penang, Malacca, Sabah and
Sarawak shall make provision conferring YDPA the
position of Head of Islam in those states

24
b. Conference of Rulers
Article 3(2) – Conference of Rulers confer powers to YDPA to
decide on certain religious matters
The holidays for certain religious celebration is given to the
states to decide.
◦ E.g: Awal Muharram, Nuzul Quran, Maulidur Rasul

25
c. National Council for Islamic Affairs
Art 5 (5)
Functions
◦ To advise and make recommendations on any matters referred to it
by the conference, state government or state Religious Council
◦ To advise the relevant authorities on matters concerning Islamic
law or the administration and Islamic education with a view to
improving, standardizing or encouraging uniformity in Islamic law
and administration

26
d. State Religious Council
Every state to have a Religious Council to
advise the Ruler on Islamic matters.
Penang and Malacca – to advise YDPA
Sabah and Sarawak – to advise the state
governments
The Religious Councils were established
under the state laws.

27
Islam is a state subject
Article 74(2), Article 80 (1)
Item I, List II of Ninth Schedule
Except in Federal Territories, only states have legislative and executive authority on
Islamic matters
KAMARIAH ALI lwn. KERAJAAN NEGERI KELANTAN, MALAYSIA& SATU LAGI DAN
RAYUAN YANG LAIN[2002] 3 CLJ 761
Abdul Hamid Mohammad:
“the standing of Islam in FC is different from other religions. First, only Islam as the
religion of the Federation; and second, the state legislature is bestowed with the
constitutional power to legislate on Muslim matters”.

28
Syariah Court
Article 74 of the Federal Constitution, read together with the State List, prescribes that
Islamic law and Islamic matters — including the establishment of Syariah courts — fall
under the jurisdiction of the State.
Article 121(1A)
State authorities have jurisdiction only over Muslims
Criminal jurisdiction:
◦ Syariah Courts (Criminal Jurisdiction) Act 1965 – Syariah Courts have jurisdiction over
offences against the precepts of Islam, committed by Muslims.
◦ the Syariah court in its criminal jurisdiction is subject to limits imposed by Federal law
of a maximum sentence of three years imprisonment, maximum fine of RM5,000 and
whipping up to six strokes, the so-called "3:5:6 Rule".

30